JUDGMENT :

1. Heard learned Additional Chief Standing Counsel appearing on behalf of the petitioners.

2. Notice to the respondent is dispensed with.

3. Under challenge is the judgment and order dated 13.2.2020 passed in Claim Petition No.1183 of 2007 Ganga Prasad versus State of U.P. and others by State Public Services Tribunal, Indira Bhawan, Lucknow whereby the impugned dismissal order dated 8.5.2002 and the appellate order dated 31.3.2006 have been quashed by the tribunal. Further, it has been directed that the claim petitioner shall be reinstated notionally but he will not get any back wages from the date of dismissal till the date of reinstatement. However, retiral benefits have been ordered as per rules.

4. Facts, in brief, are that the respondent /claim petitioner was appointed on the post of Vidhan Bhawan Rakshak. While working as such, a departmental proceeding was initiated against him under rule 7 of U.P. Government Servants (Discipline and Appeal) Rules, 1999 (in short 1999 Rules), allegedly on the charges of unauthorised absence from duty. A charge-sheet containing three charges was served on the claim petitioner on 14.12.2000, however, the claim petitioner did not submit any reply. The enquiry officer submitted enquiry report on 22.9.2001, followed by a show cause notice along with copy of the enquiry report on 3.12.2001. Still no reply to the show cause notice has been submitted by the petitioner. Then, a supplementary charge-sheet dated 22.9.2001 was issued to the petitioner to which the claim petitioner submitted his reply on 7.2.2002. The enquiry officer submitted his enquiry report on 7.2.2002, holding the charges established against the claim petitioner.

Again, a show cause notice has been issued to the claim petitioner on 26.2.2002, to which the claim petitioner submitted his reply with the undertaking that in future he will not be absent without intimation. Thereafter, order dated 8.5.2002 was passed against the petitioner which was challenged before the tribunal.

After hearing the parties and after perusal of the pleadings, available on record along with the original departmental enquiry file, as also considering the relevant rule as well as the judgments reported in [2003 (21) LCD 610 Radhey Khant Khare versus U.P. Cooperative Sugar Factories Federation Limited and 2010 (2) SCC 772 State of U.P. and others versus Saroj Kumar Sinha, the tribunal has recorded the following finding :

“7. Since allegation levelled against petitioner was serious, we summoned record from department. From record, it transpires that enquiry officer did not fix any date, time and place for holding oral enquiry and no evidence was led in this case, as such rule 7 of U.P. government Servants (Discipline and Appeal) Rules, 1999(Rules 1999 in short) had not been followed by enquiry officer while conducting enquiry nor any opportunity of defence was given to petitioner.

10. Submission of petitioner is that he reported for duty alongwith medical certificate for the absence period, but his medical certificates were not considered. If there was any doubt regarding Medical certificates, they ought to have been got verified from Doctor but this has not been done. Since petitioner submitted medical certificates burden to prove the charges lay on the department and not on the petitioner.

11. From the above, it is manifest that neither oral evidence was led nor any opportunity of defence was given to petitioner. No date, time and place was fixed. There are multiples procedural and legal infirmities in conducting the enquiry, as such, we are satisfied that enquiry was of conducted according to Rule 7 of Rules, 1999, which vitiates the enquiry as well as punishment order.”

5. Learned Addl. Chief Standing Counsel for the State petitioners submits that the claim petition has been allowed on technical ground without recording any finding. It is submitted that the order passed by the tribunal is on the ground of procedural flaw in the enquiry and no prejud